Karnataka High Court
Sri Chandrashekaraiah vs The State Of Karnataka on 18 March, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.117/2011
BETWEEN:
1. SRI CHANDRASHEKARAIAH
AGED ABOUT 42 YEARS
S/O SRI SHIVARUDRAIAH
RESIDING AT: KOMMAGHATTA VILLAGE
KENGERI HOBLI
BENGALURU SOUTH TALUK
BENGALURU DISTRICT.
2. SRI BHAVARAMMA
AGED ABOUT 64 YEARS
W/O SRI RUDRAPPA
RESIDING AT: KOMMAGHATTA VILLAGE
KENGERI HOBLI
BENGALURU SOUTH TALUK
BENGALURU DISTRICT.
... APPELLANTS
(BY SRI SATYANARAYANA S. CHALKE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY THE STATION HOUSE OFFICER
BIDADI POLICE STATION
RAMNAGAR RURAL CIRCLE
RAMNAGAR TALUK AND DISTRICT.
... RESPONDENT
(BY SMT. B.G.NAMITHA MAHESH, HCGP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
29.01.2011 PASSED BY THE PRESIDING OFFICER, FAST TRACK
COURT-III, BENGALURU RURAL DISTRICT, BENGALURU IN
S.C.No.109/2010, CONVICTING THE APPELLANT NOS.1 AND
2/ACCUSED NOS.2 AND 3 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 307 AND 114 R/W SECTION 307 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 12.02.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and order of conviction and sentence passed in S.C.No.109/2010 by the Presiding Officer, Fast Track Court-III, Bengaluru Rural District, Bengaluru dated 29.01.2011 against the accused Nos.2 and 3 convicting both of them for the offences punishable under Sections 307 and 114 read with Section 307 of IPC and sentencing an imprisonment for a period of 7 years and 5 years respectively.
2. The factual matrix of the case is that on 26.4.2009 at 9.40 p.m., accused Nos.1 to 5 with an intention to kill PW.1 came in a group and accused No.1 picked up quarrel with her and instigated accused Nos.2 and 3 and abused her as "F 3 ªÀÄÄAqÉÃzÀÄ ¢£Á EzÉà UÉÆüÀÄ FPÉAiÀÄ£ÀÄß ªÀģɬÄAzÀ DZÉUÉ vÀ½î, ¹ÃªÉÄJuÉÚ ºÁQ ¸ÀÄlÄÖ ºÁQgÉÆÃ" and accused No.1 kicked her with his leg and accused No.2 dragged her out of the house and accused No.3 brought kerosene Can from the house and gave it to accused No.2 and accused No.2 went to pour kerosene on her body and when she was attempting to escape, accused Nos.4 and 5 restrained her and told her as "J°è ºÉÆÃUÀÄwÛ EªÉÇvÀÄÛ ¤£ÀߣÀÄß ¸ÀéUÀðPÉÌ ¸ÉÃj¸ÀÄvÉÛêÉ." and accused No.2 poured kerosene on her body, when she was removing and throwing saree, accused No.2 set fire to it. Due to it, she sustained burn injuries on stomach, thigh, private area and when she rushed inside the house and pouring water over her body and changing her dress, accused Nos.2, 3 and 5 came there and accused No.2 assaulted her with club on left shoulder, waist and caused pain to her and accused No.5 caused nail injuries on her neck, thigh, fore leg and gave physical and mental cruelty to her and attempted to kill her and CW.2 Anjanmurthy stopped the incident and thereby accused have committed the said offences.
3. The Police after the investigation, have filed the charge sheet for the offence punishable under Sections 143, 4 323, 324, 114, 498A, 504, 307 read with Section 149 of IPC. The accused persons were secured before the Trial Court and they have not pleaded guilty and claimed to be tried. Hence, the prosecution got examined the witnesses PW.1 to P.W.7 and also got marked the documents Exs.P.1 to P5(a). After the closure of the prosecution evidence, the statement of the accused persons were recorded under Section 313 of Cr.P.C. and the accused Nos.1 to 5 denied the incriminating materials against them and thereafter, they did not lead any defence evidence. Learned Sessions Judge, after considering both documentary and oral evidence, acquitted the other accused persons and convicted accused Nos.2 and 3 for the offences punishable under Sections 307 and 114 read with Section 307 of IPC respectively. Hence, the present appeal is filed by accused Nos.2 and 3 before this Court.
4. In the appeal, it is contended that the Sessions Judge has committed an error in convicting the accused Nos.2 and 3 for the offences punishable under Sections 307 and 114 read with Section 307 of IPC respectively. The judgment 5 delivered by the Sessions Judge is bad in law and the same requires to be reversed.
5. Learned counsel for the appellants would vehemently contend that the learned Sessions Judge failed to take note of the fact that there was no supportive evidence to the effect that the appellants were unhappy that PW.1 did not bear the male issues and that they were subjecting her to harassment. It is also contended that no independent witnesses were examined by the prosecution to substantiate the case of the prosecution and has committed a grave error in accepting the testimony of PW.1 and convicting the appellants herein for the above said offences. Learned Sessions Judge also failed to consider that the entire evidence given by PW.1 was inconsistent with her complaint Ex.P.1 and her testimony is doubtful and the same has not been corroborated by any other materials on record. The Sessions Judge also failed to appreciate that there was an enormous delay in filing the complaint and no cause let alone proper cause has been put forth by the prosecution for the delay.
6. It is further contended that the learned Trial Judge failed to appreciate that there was sufficient time for PW.1 to 6 exaggerate and weave a story targeting her husband and his family members and creating and garnering circumstances and witnesses in her support. The Trial Judge failed to appreciate that the circumstances which were portrayed by the prosecution to show that PW.1 was doused in kerosene and that she was lit by a match stick and she herself doused the fire by throwing water over her from a water sump which was situated at the backyard, which was quite a distance away, would be difficult to believe as a person doused in kerosene would be engulfed in flames immediately and such a person is bound to sustain burn injuries to the major parts of her body. The person who sustained burn injuries on a major part of her body would have to immediately get herself treated for the burn injuries. In the case on hand, she has not taken the treatment though she claims that she has sustained the burn injuries and she remained in the house the entire night and took treatment for her injuries on the next day, would further create a doubt about whether infact such an injury was inflicted upon her. The learned Sessions Judge failed to appreciate this aspect and committed a grave error in accepting the testimony of PW.1. 7
7. Learned counsel would submit that the recovery of MOs.1 to 3 under Ex.P2 is also doubtful and the prosecution has not examined the maker of the FSL Report - Ex.P.5. Hence, the Sessions Judge committed an error in accepting the testimony of the prosecution witnesses. The evidence of the Doctor-PW.4 is also inconsistent with his report-Ex.P.3. The injuries sustained by PW.1 could be superficial and self inflicted, which could not be ruled out. Such being the situation, learned Sessions Judge committed a grave error in accepting the testimony of PW.4. The injury sustained by PW.1 are simple in nature and she has spent more than 12 hours in the house of the first appellant and in order to attract the ingredients of Section 307 of IPC, there has to be an intervening cause due to which the victim could be alive. If at all PW.1 felt that she would be killed by the appellants, she would not have stayed in the house of the accused in the entire night and would have tried to get the immediate help. No such circumstances had occurred. Hence, learned Sessions Judge ought not to have convicted the accused Nos.2 and 3 for the offence punishable under Section 307 and Section 114 read with Section 307 of IPC respectively. 8
8. Learned counsel for the appellants would submit that the Trial Judge has failed to appreciate both oral and documentary evidence and has mainly relied upon the evidence of PW.1. The evidence of PW.1 is also not consistent and there are contradictions in the evidence. Learned counsel also would submit that there was a delay in lodging the complaint and the injuries found on PW.1 are blisters of burns, which is first degree injuries. No doubt, the FSL report shows the presence of the kerosene in the Petticoat and no MLC before the Court. The mahazar drawn also not speaks anything with regard to it. The place of the incident is also contrary, but she claims that she called her sister over mobile as she was having the mobile with her. Learned counsel would submit that the seized articles were sent to Magistrate and there was a delay of 5 days in sending the same.
9. Per contra, the learned High Court Government Pleader appearing for the State would submit that though the appellants' counsel would vehemently contend with regard to the delay, there is no any effective cross-examination in respect of the delay is concerned and no questions are put to the 9 witnesses. When there is no cross-examination in respect of the delay is concerned, now the appellants cannot contend that there was a delay in lodging the complaint. The victim statement was recorded in the hospital and based on that statement, case has been registered and she was hospitalized from 29.04.2009 till her discharge in the month of May. PW.2, who is the panch witness also supported the case of prosecution. PW.3 is the brother of PW.2 and the evidence of the Doctor-PW.4 is consistent with the evidence adduced by PW.1-the injured. PW.5-ASI conducted the spot inspection and seized the material objects. The witness, who carried on the FSL is also examined as PW.6. The evidence of Investigating Officer-PW.7 is also considered by the learned Sessions Judge. Hence, the learned Sessions has not committed any error in appreciating both oral and documentary evidence.
10. Having considered the evidence of PW.1, PW.4, medical evidence and FSL Report, it is clear that kerosene was poured and fire was lit, which was doused by PW.1 or otherwise, it would have resulted in a severe injury and that she herself doused the fire by pouring water, as a result, she sustained the 10 blisters of burn injuries. Hence, the judgment of the Sessions Court cannot be interfered with.
11. Having heard the learned counsel for the appellants and learned counsel appearing for the respondent, the points that would arise for the consideration of this Court are:-
1. Whether the Sessions Judge has committed an error in convicting the appellants herein for the offence punishable under Section 307 and Section 114 read with Section 307 of IPC respectively and it requires interference of this Court ?
2. What order?
Points No.1 and 2:-
12. Having heard the learned counsel for the appellants and the learned High Court Government Pleader appearing for State, this Court has to re-appreciate the evidence available on record both oral and documentary evidence in order to ascertain the correctness of the judgment of the learned Sessions Judge. Before appreciating the reasoning given by the Sessions Judge in convicting the accused, it is appropriate to reconsider the evidence available on record. The prosecution has relied upon 11 the evidence of PWs.1 to 7 and documents Exs.P1 to P5(a) and so also MOs.1 to 3.
13. PW.1, who is the complainant/victim in her evidence, she has deposed that her marriage was solemnized with accused No.2, who is the first appellant herein 17 years ago and in the said wedlock, she gave birth to two daughters. It is her allegation that when she gave birth to first daughter, she was subjected to abuse that she gave birth to a girl child which was informed to her parents, who consoled and advised her to adjust with them. Later, within two years, she again gave birth to a daughter and by that time also, the family members had abused her stating that she gave birth to a daughter again. The husband also abused and scolded her. The other accused also joined with her husband in abusing and teasing her and she was subjected to harassment. It is also the allegation that they were not providing milk to her two daughters and they asked to graze the cattle. The said fact was also informed to her parents and hence, her father came and enquired with the accused persons. The father by providing her the sewing machine advised to make her livelihood with the same. It is also her evidence that she 12 went and gave the complaint to Bidadi Police and the Police called them for enquiry and took undertaking from them. It is also her evidence that thereafter also, they made galata for joining her daughter to a school, and the school teacher also adviced them not to trouble her. The complainant also joined the school as a school teacher and she was traveling to school in the school van. The husband had obstructed the school van and abused the driver and she was subjected to harassment. Since the harassment was continued, she left the said job. The husband also left the matrimonial home and joined the house of the first accused and lived with them for a short period. It is her evidence that she joined the Priyadarshini Vidya Kendra again for job. Her husband, while boarding the school bus, poured the entire bucket of milk on her. Her children also went to their grand-mother's house. When she went to see her child who was unwell, again she was abused by her husband, and for which, she lodged the complaint to Bidadi Police stating that the accused persons have abused her.
14. It is also her evidence that on 26.04.2009, since morning, accused No.5 was abusing her in filthy language and 13 the same was informed to her husband, but he did not react. Instead, he supported accused No.5, who held the hair of the complainant. The other accused have also abused the complainant. Accused No.3 went inside the house and brought kerosene Can and gave the same to the husband of the complainant and she uttered to pour kerosene and would see as to who will come to rescue her at that time. Later, the husband poured the kerosene all over her body and lit the fire. She removed her saree. As a result, she sustained injuries to her waist, private part of the body and thighs. The son of Gallappa came and questioned, for which, the husband went and brought the Bamboo Club and assaulted on her right shoulder, for which, she immediately, rushed to the backyard of the house near the sump and extinguished the fire by dousing herself by pouring water and went inside the room and locked the door. This incident had taken place at 9.40 p.m. The complainant/injured informed the same over phone to her sister. The next day morning, she went and took treatment at Yeshaswini Clinic, Kengeri and at Kengeri Government Hospital. Her sister, the husband of her sister Renukappa and his brother came to the hospital. Thereafter, on the advice of the Doctor, she was taken 14 to Rajarajeshwari Hospital, where, she informed the Doctor about the incident and they in-turn informed the Bidadi Police. The Police came and recorded her statement in terms of Ex.P.1 and she identified her signature. She also identified M.Os.1 to 3. It is also her evidence that they made an attempt to take away her life and identified the accused persons before the Court.
15. In the cross-examination, it is elicited that the other accused persons are residing separately and the complainant and her husband were living together. It is her evidence that the house of accused No.3 is beside to her house and that earlier she was residing in the said house. The present house is constructed by her husband in 1997 and accused No.3 has been residing separately in another portion. They were cordial for about three months and thereafter, the dispute arose between them. P.W.1 has studied upto PUC and her husband has studied upto 8th standard and having the agricultural land to the extent of 10 acres. It is elicited that her father had provided her a sewing machine in the year 1996 and her marriage was solemnized in the year 1993. She gave the complaint against her husband and family members in the year 1995 at Bidadi 15 Police Station, for which, no case has been registered. In the year 1998, she admitted her first daughter to the school. It is suggested that her husband had himself paid the school fee and the said suggestion was denied. It is elicited that second daughter was born in the year 1997 and she joined the school in the year 1999 as a teacher. It is suggested that her husband is a farmer and they used to keep a stick/club in the house and she admits the same. It is also suggested that in the village house, normally the kerosene Can will be kept. Witness says that the said Can was not in the house. It is elicited that now she is working in a school by name Priyadarshini Vidya Kendra.
16. It is elicited that 26.4.2009 was a Sunday, and the appellants started abusing P.W.1 from morning by 10.30 itself and the other accused were also abusing inside the house. It is elicited that when the kerosene Can was brought and given to her husband, her husband was inside the house and later he poured the kerosene on the head and all over her body of P.W.1. It was suggested that the Can contains about 5 to 6 liters of kerosene. She replies that she cannot tell as to how much kerosene was there in the Can. The kerosene was poured at 16 around 9.40 p.m. There are other 12 houses adjacent to her house. It is also elicited that the hands of her husband was also brushed over with kerosene. Accused No.2 threw the matchstick from a distance of 1 or 2 feet and the same fell on her stomach. Her body was also doused with kerosene. She removed her saree and hence, her petticoat caught fire, because of which, she suffered burn injuries on her stomach and on other places. She was wearing the nylon saree and thrown the same at the incident place and then she went near the sump, situated at the backyard of the house and extinguished the fire by pouring water. The incident had taken place in the middle of the house. She was inside the room by locking her room after the incident. It is elicited that she was having mobile from last two years prior to the said incident and her sister did not come to her house on the same day, but she came to the hospital on the next day. She came out from the house in the morning at 10.30 a.m. and by that time, her husband was not in the house. Her sister and the husband of her sister came at around 11.30 a.m. and one Renukappa, who is the brother of her sister's husband also came to the hospital. The Doctors at Kengeri Government Hospital adviced to take her to Rajarajeshwari Hospital. Her sister's 17 husband and Renukappa and her sister all of them shifted the complainant to Rajarajeshwari Hospital.
17. It is also elicited that she did not make any phone call to her sister in the said night itself, but she made the phone call on the next day. Her sister is residing at Bande Matta. The Doctor had informed the Police about the incident. It is suggested that she used to quarrel with her husband stating that he is an illiterate and the same was denied. It is suggested that both accused Nos.2 and 3 were residing together and hence, she was insisting her husband to divide the valuable property and the said suggestion was denied. It is suggested that she used to threaten her husband that she will abandon the house and will lit fire herself and the said suggestion was denied.
18. PW.2-Renukappa, in his evidence says that PW.3 called him over the phone on 27.04.2009 and hence, he took his Car to Kengeri Hospital. The victim was shifted to Rajarajeswari Hospital in his Car and he found the burn injuries on her stomach. The Doctor himself had informed the Police about the incident. The Police came and recorded her statement in the hospital. It is also his evidence that on 02.05.2009, the Police 18 came near the house of the victim and he also visited the place of the incident on that day. The Police have seized the club, kerosene Can and a cloth and have drawn the mahazar. He has signed the mahazar and also identified his signature as Ex.P.2(a). He also identified MOs.1 to 3.
19. He was subjected to cross-examination. In the cross-examination, he says that the victim is not his relative, however he admits that, Ravi, Hemalatha are his brother and sister-in-law. He received phone call by Ravi at 7.00 a.m. and he requested the driver of the Car to go to the hospital. He had visited the hospital at around 7.45 a.m. and the victim was shifted to Rajarajeshwari Hospital. The victim told him to lodge the complaint to the Police and hence, they went and gave the complaint at around 9.30 a.m. It is elicited that complaint was given after shifting her to Rajarajeshwari Hospital. He gave the complaint orally and Police came and recorded the statement of the victim in the hospital at around 11.00 a.m. He had seen the Can, when the Police took him to the house and it was lying near the door, but he did not point out the same to the Police. The mahazar was also drawn till 2.30 p.m. and he came to know 19 about the incident when he received the phone call from Ravi. It is suggested that in his presence, no articles were seized and the same was denied.
20. PW.3-Ravi Kumar in his evidence, he says that the victim is his sister-in-law and he received a phone call on 27.04.2009 and he shifted her to Rajarajeshwari Hospital in the Car belong to PW.2. She had sustained burn injuries and abrasion injuries on her body. The Doctor had informed the Bidadi Police about the incident, who in turn came and recorded the statement of the victim and while giving the statement, she made the allegation against her husband and other accused. This witness was also subjected to cross-examination. In the cross-examination, he says that he received a phone call at 9.30 a.m. and he has not witnessed the incident. He came to know about the burn injuries through PW.1. He went to Rajarajeswari Hospital at 11.30 a.m. The distance between Yeshaswini Clinic and Rajarajeshwari Hospital is around 6 kilometers. The victim herself called over phone and informed him and his wife about the incident. His wife had also come to see the victim. It is 20 suggested that the victim is his sister-in-law and hence, he has given false evidence and the same was denied.
21. PW.4 is the Doctor, who gave the treatment and in his evidence, he says that he examined the injured on 29.04.2009 at around 2.30 p.m. as she sustained injuries on account of pouring kerosene. PW.4 deposed that she sustained injuries below the stomach, portion of the private part, right-side of her thigh and on the left shoulder and the said injuries are simple in nature. He also noticed the burn injuries near pelvic and pubic region and also the skin abrasion over the left shoulder, mid clavicular region, and also found the finger nail abrasion over left fore arm. The victim was an inpatient from 29.04.2009 to 5.5.2009 for a period of seven days. He issued the wound certificate in terms of Ex.P3. He identified his signature as Ex.P3(a). He was subjected to cross-examination. In the cross-examination, it is elicited that she was admitted in emergency ward and they started the treatment immediately and she was in normal status. Before coming to their hospital, she took treatment at Yeshaswini Clinic, Kengeri, and they came to their hospital voluntarily and not by any reference. It is 21 elicited that the victim herself disclosed that she took treatment at Kengeri Hospital. The injuries are 1 ½ days old. It is elicited that the injuries could be recovered within 7 days. It is suggested that if any person fall on the stone, there are chances of getting abrasion and the said suggestion was denied. No burn injuries are found above the stomach, but found burn injuries on the left shoulder. It is suggested that if suddenly stove is burst and fire catches on the saree, there are chances of getting this type of injuries and the same is denied. It is suggested that he has not given the wound certificate and the said suggestion was denied.
22. PW.4 was also subjected to further cross-
examination. It is suggested that if kerosene is poured and fire is set, there are chances of getting 100% burn injuries and the said suggestion was denied. It is elicited that he has not mentioned the measurement of each of the burn injuries, but he says that the pubic portion was entirely burnt and so also the pelvic region. It is also suggested that the person who has sustained the burn injuries need not be in hospital for more than 22 a day and the said suggestion was denied. He says that in order to heel up the burn injuries, it requires minimum a week time.
23. PW.5-ASI in his evidence, he says that on 01.05.2009, on the instructions of PSI, he went to Rajarajeshwari Hospital and recorded her statement as the Doctor informed that she is able to give statement. In the statement, she made the allegations against her husband and his family members that they poured the kerosene and lit fire and also that her husband assaulted her with a club and so also the other accused persons caused the injuries. He has also attested the statement as Ex.P.1(b). The Doctor also endorsed the said statement as Ex.P1(c). Based on that statement, he has registered the complaint and issued the FIR in terms of Ex.P4 and it contains his signature as Ex.P4(a). It is also his evidence that on the next day, he went and conducted the spot mahazar in terms of Ex.P2 and identifies his signature as Ex.P2(b). He identifies MO.1 to 3.
24. In the cross-examination, it is elicited that he recorded the statement at 3.00 p.m. and he has not received the complaint prior to 1.5.2009. The victim was in a position to 23 speak and hence, the statement was recorded as per her say. The incident spot was locked, when he visited the spot, but neighbours were present and he has not mentioned the same in the mahazar. MOs.1 to 3 are shown by Renukappa. He has not received any memo prior to recording the statement of the victim.
25. PW.6 is the P.C., who took the sealed articles to FSL on 15.06.2009, in two sealed covers as per the instruction of the PSI. There was no cross-examination by any of the accused persons.
26. PW.7 is the P.I., who conducted the further investigation and stated that he has collected the investigating papers from S.I. Ramaiah on 04.05.2009 and recorded the statement of one Ravi. He also obtained the wound certificate in terms of Ex.P3 and he also received the FSL Report in terms of Ex.P5. He was subjected to cross-examination. In the cross- examination, he admits that he has not given the notice to witness Ravi and his statement was recorded in the station and hence, he cannot tell the timings. It is suggested that he has not recorded the statement of said Ravi and the same was 24 denied. It is suggested that he has not conducted any investigation and filed the charge sheet and the said suggestion was denied.
27. Having perused both the oral and documentary evidence, this appeal is filed by accused Nos.2 and 3 and hence, this Court has to consider the evidence available before this Court in respect of accused Nos.2 and 3, who are the appellants in the present appeal. Now this Court has to examine whether the Sessions Judge has committed an error in convicting these two accused. The main contention of the appellants' counsel before this Court is that the nature of injuries is the blisters of burn injuries and also the said type of injuries could be caused by self-incrimination as well and there is a delay in lodging the complaint. She also immediately did not take the treatment and the whole night, she stayed in the house itself. If really the appellants intend to take away the life of the complainant, they would have murdered her. The Sessions Judge failed to consider these aspects while convicting the accused persons. In the background of the said contentions, this Court has to re- appreciate the material available on record.
25
28. Having perused the evidence of P.W.1, since no other eye-witnesses are examined before the Court, this Court has to examine whether the evidence of P.W.1 inspires the confidence of this Court as the other witnesses are only the circumstantial witnesses and medical witness.
29. P.W.1 in her evidence, she deposed that she gave birth to two daughters and not having any male issues and hence, there was ill-will against her by both her husband as well as the family members. It is also her evidence before the Court that she was subjected to cruelty when she was attending the school as a teacher. It is also her evidence that her father provided a sewing machine prior to the incident to make her livelihood. It has also come in her evidence that she gave the complaint earlier to Bidadi Police and the Police called them, enquired and took undertaking from them. In the cross- examination of P.W.1, these aspects has not been disputed by the accused. It is the specific evidence of P.W.1 that husband had also obstructed the school van and abused the driver and she was subjected to harassment. In the cross-examination, the same has not been denied. It is also an allegation that when 26 P.W.1 was subjected to harassment, she left the said job. She also says that the husband left the matrimonial home and joined the house of the first accused and lived with them for a short period. These are the materials not disputed seriously while cross-examining the witness P.W.1.
30. Now the question before this Court is with regard to the incident of committing an offence punishable under Section 307 of IPC with respect to making an attempt to take away the life of P.W.1. It is also her evidence that accused No.3 went inside the house and brought kerosene Can and gave the same to her husband uttering to pour kerosene and would see as to who will come and rescue her. Immediately, the husband poured kerosene all over her body and she removed the saree, by that time, her husband lit the fire, as a result, she sustained the injuries on her waist, private part of the body and thighs. It is also her evidence that a son of Gallappa i.e., CW.2 came and questioned, for which, the husband went and brought the Bamboo Club and assaulted on the right shoulder and immediately P.W.1 rushed to the backyard of the house near the sump and extinguished the fire by dousing herself by pouring 27 water and went inside the room and locked the door. The next day morning she went and took the treatment at Yeshashwini Clinic and thereafter, admitted to the hospital.
31. It is also the evidence of P.W.2 and P.W.3 that they went and took P.W.1 to the hospital, where she gave the information to the Doctor about the incident and the injuries sustained. The evidence of P.W.1 is inconsonance with her statement-Ex.P1. She also identified MOs.1 to 3. It is her evidence that they made an attempt to take away the life of P.W.1. In the cross-examination of P.W.1, she admits that the present house is constructed in the year 1997 and accused No.3 was residing separately in another portion. She admits that for the complaint which she has given in the year 1995 with Bidadi Police, the Police have not registered the case. Her evidence is clear that the Police called and enquired and adviced them not to interfere with her affairs and took the undertaking. The same has not been disputed in the corss-examination. In the cross- examination, it is suggested that when the daughter was admitted to the school, her husband only gave the money and the said suggestion was denied. It is suggested in the cross- 28 examination that in the village house normally the kerosene Can will be kept and witness says that the same was not in her house and the same was brought by accused No.3. It is elicited that when the kerosene Can was brought and given to her husband, her husband was inside the house and later, he poured the kerosene on the victim. However, it is elicited that she cannot tell how much kerosene was there in the Can. It is also her evidence that she removed the saree and her petticoat was caught with fire, as a result, the petticoat was also half burnt and she sustained injuries on her stomach and other places. It is also elicited that the incident had taken place in the middle of the house and she was inside the room by locking the door after the incident. In the cross-examination of P.W.1, nothing is elicited specifically with regard to the incident, pouring the kerosene and setting the fire and as a consequence, she sustained injuries.
32. The Court has to look into the evidence of the Doctor since the other two witnesses P.Ws.2 and 3, who took the injured to the hospital from their vehicle says that they took only the injured to the hospital and admitted her to the hospital. 29 Their evidence is not material as it is only the circumstantial evidence with regard to providing treatment to her. The medical evidence coupled with the evidence of P.W.1 has to be examined carefully. The Doctor who is examined as P.W.4 and treated the victim gave the evidence with regard to the injuries are concerned and wound certificate is also marked as Ex.P3. It is also important to note that the Doctor also attested the statement of P.W.1 that she is competent to give the statement. In the evidence of P.W.4, it is categorically stated that the injuries which he has noted are the burn injuries. His evidence is clear that she has sustained the injuries to the lower portion of the stomach, private part of the body to certain extent, burn injuries on right thigh and on the left shoulder and those injuries are simple in nature. It is also his evidence that he found the injuries on pelvic and pubic region and also stated the measurement of each of the injuries. It is also his evidence that she was hospitalized from 29.04.2009 to 05.05.2009.
33. In the cross-examination, a suggestion was made that similar nature of injuries could be cured within seven days of the treatment. It is suggested that if a person falls on the 30 hard surface i.e., on the stone, there are chances of sustaining abrasion and the said suggestion was denied. It is suggested that no injuries were found above the stomach and the said suggestion was denied. The Doctor says that there were burn injuries on the left shoulder. It is suggested that while cooking, if the fire come in contact with saree, this type of injuries could be caused and the said suggestion was denied. However, if stove is burst, there are chances of burn injuries, but it is not their case that the stove was burst. It is also elicited in the cross-examination that if the kerosene is poured on anything and if fire is lit, there are chances of 100% burn injuries and the said suggestion was denied. It is elicited that in the wound certificate, he has not mentioned the entire measurement of burn injuries and he admits the same. It is suggested that if a person falls on the hard surface or on the ground, there are chances of abrasion over the body and the said suggestion was also denied. It is suggested that there is no need of taking treatment for a week, if burn injuries are sustained and a day treatment is enough and the said suggestion was also denied. He admits that in order to cure the burn injuries, it requires minimum a week's time and he admits the same.
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34. Having perused the evidence of P.W.4 also, nothing is elicited to disbelieve the evidence of P.W.1 and also the evidence of the Doctor. Except eliciting the answers in the cross-examination of P.W.4 that if stove is burst, there are chances of burn injuries. In the case on hand, no such suggestion is made to P.W.1 that the stove was burst. The evidence of P.W.4 is clear that she sustained burn injuries below her stomach and on her private part of the body, right thigh, left shoulder and so also on the pelvic and pubic portion. It is important to note that the very contention of the appellants' counsel is that she has not taken the treatment immediately after the incident, but her evidence is clear that when the incident had taken place, and an attempt was made by pouring the kerosene on her and the fire was lit, she ran to the backyard of the house and poured water, and then, she immediately, went and locked the room. It is the normal conduct of a prudent person that in case of any threat to life, he/she would take the shelter and accordingly, P.W.1 went inside the room and locked the door to save her life. It is also her evidence that she went to hospital on the very next day and there was a delay in visiting 32 the hospital, but she claimed that on the next day, she went to Yeshashwini Clinic. She took treatment at Kengeri Government Hospital and then went to Rajarajeshwari Hospital on 29.04.2009 and she was an inpatient for a period of one week. It is not in dispute that the nature of injuries are the burn injuries. It is also her evidence that accused No.3 went and brought the kerosene Can and gave it to accused No.2, who is her husband and while handing over the Can also, accused No.3 uttered to pour kerosene and would see who will come to rescue her. There is specific evidence of P.W.1 both in respect of these two petitioners. The Sessions Court also gave the benefit of doubt in respect of other accused. The same is not challenged.
35. The paramount evidence to be looked into by the Court is of P.Ws.1 and 4. Having perused the evidence of P.Ws.1 coupled with medical evidence of P.W.4, it is clear that she sustained the injuries on account of setting the fire on her after pouring the kerosene. The very contention of the learned counsel for the appellants is that there was a delay in lodging the complaint. Whereas, in a case of matrimonial dispute, normally, the victim will not go to the police station immediately. 33 In the case on hand, the victim visited the hospital and took treatment, where she revealed the act of these appellants and the Doctor in-turn intimated the Police, but no such document is placed before the Court for having intimated the Police. The document would reveal that on 01.05.2009 Police went and recorded the statement of the injured and the Doctor also certified that she is capable of making the statement.
36. No doubt, the nature of injuries sustained by the victim as assessed by the appellants' counsel are the injuries in the nature of blisters of burns. P.W.1 has given the explanation that when they have poured kerosene, immediately she removed her saree and when the fire was lit, she was wearing petticoat. It is also important to note that through P.W.7, the FSL Report got marked and the said FSL report clearly depicts that the petticoat also contains the kerosene in terms of Ex.P5. In the cross-examination of P.W.7 with regard to the FSL report is concerned, nothing is disputed and elicited. P.W.7 also admits that they have not received any memo from the hospital. The mahazar also discloses for having seized MOs.1 to 3, which is 34 marked as Ex.P2 in the presence of P.W.2. Nothing is elicited to disbelieve the evidence of P.W.2 regarding seizure of MOs.1 to 3.
37. Having perused the document-Ex.P5, the FSL Report coupled with evidence of P.W.1 and P.W.4 and evidence of Investigating Officer - P.W.7 and so also Ex.P3 - would certificate, it is clear that she has sustained the burn injuries, which are simple in nature, but the said injuries are the blisters of burns over the pelvic and pubic region and also skin abrasion over the left shoulder and mid clavicular region, finger nail abrasion over the left fore arm, dorsal aspect of left fore arm obliquely placed. It is also clear that she has sustained multiple skin abrasion (finger nail) over the right leg, middle 1/3rd upper 1/3rd and right knee joint, contusion medial aspect of right thigh, abrasion of middle 1/3rd left leg, abrasion medial aspect of left leg, knee joint. All these injuries supports the case of the prosecution that before the fire has been lit, the altercation had taken place. When an attempt is made to take away the life of the victim by pouring kerosene, and setting the fire, the contention of the appellants' counsel that the ingredients of offence under Section 307 of IPC does not attract, cannot be 35 accepted. No doubt, as contended by the appellants' counsel, the person who came to spot is the neighbour, who is the son of Gallappa and he has not been examined, though cited as CW.2, but the same is not fatal to the case of the prosecution as contended by the appellants' counsel when the evidence of P.W.1 and medical evidence corroborates the case of the prosecution.
38. Having perused the both oral and documentary evidence placed on record, the prosecution was able to make out the case. The delay in lodging the complaint will not take away the case of the prosecution and the delay has also been explained that she was inside the room and immediately locked the room and went to hospital on the next day. It is noticed that through out the night on the day of the incident, the complainant was inside the house having been afraid of the incident and she locked the room. Thereafter, on the next day, she went to the hospital. No doubt, the documents in respect of visiting the Yeshaswini Clinic are not placed before the Court. When the complainant went to Rajarajeshwari General Hospital, she made the statement that she sustained the injuries on 26.04.2009 36 caused by her husband and the relatives of her husband. In the cross-examination of P.W.1, P.W.4 and P.W.7, even to extend the benefit of doubt in favour of accused persons, nothing is elicited.
39. Having perused both the evidence of P.W.1 and medical evidence of P.W.4, the prosecution has proved the case against these two appellants. The specific allegation against these two appellants are that accused No.3 went and brought the kerosene and handed over the kerosene Can to accused No.2 the husband of the victim and while handing over the Can, she also uttered the words to pour kerosene and would see who will come to rescue her, which clearly discloses the mens rea in the mind of accused No.3. It is also important to note that if the appellants had no intention to take away the life of complainant, they ought not to have poured the kerosene and the lit the fire. No doubt, the injuries are simple in nature and it is the injuries in the nature of blisters of burns, but the fact is that the kerosene was poured and she immediately removed the synthetic saree, which she was wearing. It is not the case of the prosecution that the fire was lit on the saree, but it is the case of 37 the prosecution that saree was removed by the victim prior to setting the fire and she was wearing petticoat. The FSL report also confirms that the petticoat contains the kerosene. The kersone Can was also seized and it is not disputed in the cross- examination that the sticks or clubs will not be there in the house of farmers but suggested that the same would be there in the farmers' house. A suggestion was also made in the cross- examination of P.W.1 that club would be there in the house of the farmers, but the fact is that the club injuries were also found on the wound certificate. The Sessions Court has rightly appreciated both oral and documentary evidence placed on record. P.W.1 says that she sustained injuries on the right shoulder when she was assaulted with club. The injury of abrasion was found on the left shoulder. Hence, the injuries caused by the club on the complainant is not accepted by the Sessions Court.
40. On the overall appreciation of the evidence available on record, the prosecution made out the case to convict the accused persons since the evidence of P.W.1 and Doctor P.W.4 corroborates each other. Even in the absence of any eye 38 witnesses, the Court has to look into the evidence of the injured whether the same inspires the confidence of the Court or not. In the cross-examination of P.W.1, to extend the benefit of doubt in favour of the accused, nothing is elicited, instead suggested regarding differences between the P.W.1 and her husband. Though an attempt is made by the defence that there are chances of self-incrimination, in the cross-examination of P.W.1, no such suggestions are made as to she herself poured the kerosene and set the fire even for creating the fear in the mind of the family members, but only the suggestion was made that earlier she had adopted a method of creating the fear in the mind of the family members that she would do the same, but no material is placed before the Court in support of the said contention.
41. Having perused both oral and documentary evidence placed on record, the incident was taken place on 26.04.2009 and it is emerged in the evidence that the kerosene was poured at around 9.40 p.m. and the injuries sustained by the victim P.W.1 is also the blisters of burn injuries. No doubt, the injuries are sustained by P.W.1 are simple in nature, but the injuries are 39 found all over the body, particularly, below the stomach, portion of the private part and lower limb and on the left shoulder and so also in the pubic and pelvic region.
42. Having perused those injuries coupled with the medical evidence, though the injuries are simple in nature, the contention of the appellants that the victim had sustained simple injuries and there was no any intention to take away the life cannot be accepted. While invoking Section 307 of IPC whether the injuries are simple or grievous is immaterial and the Court has to only gather whether there was an intention to take away the life. In the case on hand, it is clear that the kerosene was poured all over the body and the victim P.W.1 suddenly removed her saree and at that juncture, the fire was lit on her. Hence, the petticoat was caught with fire and so also the other parts of the body and as a result, she sustained burn injuries. It is also important to note that the fire was not extinguished at the instance of the husband or accused No.3 but she herself in order to save her life ran towards the backyard of the house, where the sump is situated and she herself extinguished the fire by pouring the water. Under such circumstances, it cannot be 40 contended that there was no any intention on the part of the appellants to take away the life of the complainant and the ingredients of the offence under Section 307 of IPC does not attract. It is to be noted that whether there was a mens rea on the part of the appellants and the same has to be assessed by looking into the evidence available on record and also the surrounding circumstances, under which the incident had taken place. In the case on hand, pouring the kerosene and setting the fire is clear and the same discloses the very intention of the appellants to take away the life of the complainant an attempt was made.
43. It is also important to note that P.W.1, in her evidence categorically deposed against accused No.3 that she went and brought the kerosene Can and handed over the same to accused No.2, who is her husband and uttered the words to pour the kerosene and would see who will come to rescue her. This utterance discloses the clear intention of mens rea to take away the life of the victim-P.W.1. Hence, the very contention of the appellants that the ingredients of the offence under Section 307 of IPC and Sections 114 read with Section 307 of IPC do not 41 attract, cannot be accepted. The Sessions Judge, while appreciating the evidence of the prosecution, though found certain discrepancies, they are not fatal to the case of the prosecution. The Sessions Judge also discussed in detail taking note of the evidence of P.W.1 coupled with the medical evidence of P.W.4 and so also taken note of injuries found on Ex.P3 and so also FSL Report - Ex.P.5, which has not been controverted by the defence counsel during the course of cross-examination. No doubt, the expert of FSL has not been examined and the Report of FSL is marked through P.W.7 and the same is not disputed. I have already pointed out that during the course of cross- examination of P.W.7, nothing is disputed in respect of the FSL Report.
44. Having considered both oral and documentary evidence placed on record and also the reasoning assigned by the Sessions Court, I do not find any error committed by the Sessions Judge in appreciating the material available on record to come to other conclusion that these appellants have not committed the offence under Section 307 of IPC and Section 114 read with Section 307 of IPC. The material available on record is 42 suffice to come to the conclusion that these appellants have committed the above said offences. On careful consideration of the entire material available on record, there are no grounds to interfere with the judgment and order of conviction of the Sessions Court. Even with regard to sentence is concerned, the Sessions Judge has considered the surrounding circumstances and the evidence and so also the material found on record in support of the fact that an attempt was made to take away the life of P.W.1 and hence, with regard to sentence part is concerned also, I do not find any grounds to modify the same.
45. In view of the discussion made above, I pass the following:-
ORDER The appeal is dismissed.
Sd/-
JUDGE PYR